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June 8, 2009

Discussing prosecutorial power at Ohio events on Tuesday

I have the honor and the pleasure of participating in two panel discussions on Tuesday sponsored by the Buckeye Institute for Public Policy Solutions, which will be focused on lessons to draw from this great new book by Jon Entine of the American Enterprise Institute tit;ed "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco and Extra-judicial Prosecution." Details about these events (which take place in the early morning in Columbus and the late afternoon in Cincinnati) can be found here and here, and this is the introduction from the Buckeye Institute:

The justice system relies on extracting plea deals, sometimes even from the innocent and from supposedly deep-pocketed businesses. What happens when a public-minded business owner -- in this case the CEO of a prominent Cincinnati and Columbus area homebuilder -- risks his reputation and financial peril to fight for citizen's rights, fairness in the justice system and the jobs of his associates? Three distinguished panelists, including two former federal prosecutors and an internationally recognized expert on criminal law from The Ohio State University will be on hand to discuss concerns about the power of prosecutors and why we all should care.

Looking at a case in which SCOTUS will look at Alabama's death penalty

This week's installment of Adam Liptak's Sidebar column in the New York Times is headlined "Death Penalty Case Reveals Failings," and it examines a capital case from Alabama now before the Supreme Court. Here are excerpts:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty. After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error....

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial. “It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

House hearing on bill to eliminate juve LWOP sentences

As detailed at this page from The Sentencing Project, on Tuesday afternoon the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold an hearing on the "Juvenile Justice Accountability and Improvement Act of 2009," which includes provisions to eliminate life without parole sentences for juvenile offender.

This official House webpage list witnesses scheduled to testify (and may soon provide links to written testimony). The bill being discussed can be accessed here, and one of its key provisions calls upon each State to "have in effect laws and policies under which each child offender who is serving a life sentence receives, not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter, a meaningful opportunity for parole or other form of supervised release."

I do not think this bill is likely to get too much legislative traction, but it should be interested to see what gets said about juve LWOP while briefing is underway in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here).

Judge Easterbrook on barbarity and the summum bonum of federal sentencing

A Seventh Circuit panel opinion authored by Judge Easterbrook in US v. Bartlett, No. 08-1196 (7th Cir. June 8, 2009) (available here), is this week's first must-read for sentencing fans. The ruling, which covers lots of issues, gets off to this poetic start:

The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short. Police officers in Milwaukee proved this the morning of October 24, 2004.

The opinion also includes a number of other profound observations, ranging from "Thrusting a pen into a person’s ear canals is torture by any definition." to "The old regime of 'departures' is defunct." And, as this latter sentence highlights, the Bartlett opinion is full of notable sentencing talk. Here are just a few passages of sentencing note (with emphasis in original):

But there is more to §3553 than §3553(a)(6). A judge must respect all of the statutory criteria in order to mete out a sentence “sufficient, but not greater than necessary, to comply with the purposes [of sentencing] set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The Court held in Kimbrough, and reiterated in Spears, that a judge need not accept the Sentencing Commission’s penological framework. The court may adopt its own. It follows that §3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence — not because of §3553(a)(6), but despite it. Avoiding “unwarranted” disparities (as the Sentencing Commission or a court of appeals defines them) is not the summum bonum in sentencing. Other objectives may have greater weight, and the court is free to have its own policy about which differences are “unwarranted.”...

Although the judge need not use the Guidelines as the fulcrum of analysis, the court still needs to understand the relation between the Guidelines and the ultimate sentence. Both Rita and Gall say that the court must construct a Guideline range accurately. A sentence is procedurally unreasonable if the judge thinks it within the range, but it isn’t — either because the range was not determined accurately in the district court, or because the judge misunderstood what that range was.

More on Sotomayor as a young NY state prosecutor

Today's New York Times includes this article, headlined "Sotomayor Is Recalled as a Driven Rookie Prosecutor," with more cover of the professional past of a likely future Justice. Here is a snippet:

Ms. Sotomayor spent about five years as a prosecutor. Interviews with her colleagues and supervisors painted a portrait of a frightened rookie prosecutor who quickly gained the confidence and the trust of others. She became a driven and focused prosecutor who easily fit in, whether in debating fine points of law with lawyers or judges or in interviewing a victim whom she perhaps recognized in broad outlines from her own upbringing in the Bronx.

“She had a foot in both worlds, and she was comfortable in both of those worlds,” said Richard H. Girgenti, a former supervisor.

Peter M. Kougasian, a friend who attended Princeton and Yale Law School with her and joined the district attorney’s office at the same time, in 1979, said he was struck by her maturity as a young prosecutor. “When you walk into a courtroom and say you represent the people of the State of New York, I think for her that was not just an abstraction,” he said. “She had experienced so many aspects of life that make up a great city,” he added, “that when she said that, you had the feeling that she knew what she was talking about in a way that the rest of us maybe didn’t.”

Appreciating the real American challenge in balancing liberty and security

A helpful reader flagged this new commentary from Dahlia Lithwick at Slate, titled "Cage Match: Guantanamo is the least of America's prison problems." Here are snippets from its start and end:

The public-opinion two-step on the wisdom of closing the prison camp at Guantanamo is fascinating, and not just because Americans are now inclined to keep the detention facility there open forever. The current legal meltdown about what to do with prisoners still at Guantanamo shows that contrary to popular belief, Americans care a good deal about prisons, prisoners, and prison reform, but only when the inmates threaten to tumble out into their backyards.

But there's the rub: We already have a prison problem, and it's already in our backyards. That's what Sen. James Webb, D-Va., wants us to understand as he launches an ambitious new effort to reform U.S. prisons nationwide. It's not quite as dramatic as the prospect of Abu Zubaydah escaping from the Supermax prison in Colorado and rampaging through the Rockies, but the U.S. prison crisis gets worse every year, and nobody seems to mind....

The Guantanamo problem we've finally started to grapple with in a pragmatic, rather than symbolic, way — it's a dangerous place with some dangerous people — is a mere speck in the eye of America's larger prison program. An AP story last week described a small Montana town that was more than willing to take all of the Guantanamo prisoners and incarcerate them because, ultimately, a jail is a jail and prisoners are prisoners. If we are so worried about locking up a few terrorists for life in maximum-security U.S. jails, shouldn't we be giving at least some thought to the folks already there? As Dennis Jett observed recently in the Miami Herald, "even if everyone at Guantánamo were transferred to a U.S. prison it would amount to an increase of less than one hundredth of one percent in the total number incarcerated in this country."

Compared with the powder keg of our domestic prison system, Guantanamo actually starts to look pretty benign. And if we are going to have a huge national panic attack about detaining dangerous individuals after 9/11, let's be honest that the dangers of a handful of Guantanamo prisoners "rejoining the battlefield" or escaping from maximum-security prisons is far more remote than the crisis now festering in our own jails and prisons. Americans who claim to be worried about allowing alleged terrorists into their own backyards would be well advised to recognize what's already happening in their own backyards. The U.S. prison system as it now exists makes even less sense than the prison camp at Guantanamo. And unlike Guantanamo, no matter what we may wish, it won't be contained, ignored, or walled off forever.

"Low-level felons add millions to spending"

The title of this post is the headline of this article from North Carolina providing another local dispatch from the prison economy. Here is how the piece begins:

North Carolina's habitual-felon law is powerful: A three-time criminal who breaks into a parking meter or has a crack pipe with cocaine residue can be sentenced as if he were a rapist.

It is expensive: These longer sentences add an average $195,000 in prison costs for each habitual felon, an analysis by The News & Observer of Raleigh shows. Since the law took effect in 1994, taxpayers have committed an additional $1.5billion to house habitual felons — and an additional $264million to build prisons for them.

And it is untouchable at the General Assembly. District attorneys and sheriffs have squashed all attempts to change it by painting opponents as coddlers of criminals, said former Rep. Joe Kiser, a Republican and the former sheriff of Lincoln County. “I blocked it every time,” Kiser said. “I'd say, ‘Here we go, soft on crime again.'”

Being tough on crime has been hard on the state budget. And now that the state has a $4.5 billion shortfall, fighting a path toward fiscal health has seldom been so critical. In the past, the General Assembly has been unwilling to take tough stands. Legislators are afraid to end goodies for powerful industries, kill pet projects or make hard calls on crime issues that provide fodder for attack ads....

In the case of habitual felons, changing the law would bring gradual but significant savings. If the state stopped sentencing people to eight to 10 years for low-level offenses, it would save roughly $5million in the first year. The savings would compound each year, saving the state a total of $190million after five years.

Since the law was passed, the prison population has grown steadily, from 27,052 in June 1995 to more than 41,000 this year.

In that period, the Department of Correction has been on a construction binge, opening 20 prisons that hold a total of 16,424 inmates. Building prisons is not cheap; it costs $66,000 per inmate to build a medium-security prison and $28,000 a year to house each prisoner. Despite its costs, the law has been unchanged since it was approved 15 years ago.

June 7, 2009

While others are very busy trying to figure out what the heck judicial activism means in light of Judge Sotomayor's record, I thought it remarkable what Judge Samuel Kent said on this topic and othersin this letter he sent last week to the task force discussing whether he will be impeached for his crimes (background here and here and here). Specifically, consider these snippets of Judge Kent's letter:

I remain proud of other aspects of my 18-year record of servive on the federal bench. From 1990 through 2008, I closed almost 13,000 cases. I always took an active role in seeking to fairly level the playing field for many, many families who sought justice against large corporations and business interests....

I hope that in the future, the federal judiciary may take steps to proactively promote and safeguard the emotional and mental health of its members. This is particularly important since federal judges naturally become alienated from many friends and colleagues upon undertaking service to the judiciary. Some of us faced with this isolation and altered identity bear the weight of our obligations and responsibilities in self-destructive ways. I am sure I am not the only federal judge who has faced severe emotional and mental problems as well as substance abuse.

Though this letter obviously represents an effort by a sex offender to suggest excuses for his crimes and to place his criminal behavior in the context of his judicial career, the final sentences of both these paragraphs strike me as remarkable. The first seems to take pride in judicial activism (and empathy?) on behalf of "many, many families" when up against "large corporations and business interests." The second seems to suggest that some (many?) federal judges are deciding cases while beset with "severe emotional and mental problems" and while engaged in "substance abuse."

I would love to see these issues — in particular whether many federal judges are beset with "severe emotional and mental problems" and engaged with "substance abuse" — discussed in the upcoming hearings for Judge Sotomayor. She has served for nearly two decades on the federal bench, and I wonder if she shares shares Judge Kent's view that the federal judiciary needs to be taking steps "to proactively promote and safeguard the emotional and mental health of its members."

"Some Coloradans drive until they kill"

This title of this post is the headline of this long Denver Post article that spotlights some of the reasons why I am not confident that society's current sentencing and punishment schemes for drunk driving are sound. Here are excerpts from the piece:

Richard Strock was arrested for drunken driving 18 times before he killed anyone. In his 19th case, his 63-year-old ex-wife was thrown into the windshield and died....

A Denver Post examination of 195 vehicular homicide-DUI cases since 2005 found that at least 30 percent of the defendants had other drunken-driving cases. Twenty-two drivers had multiple DUI arrests before they killed people.

Three picked up new drunken-driving charges after killing people while under the influence. One was arrested for driving drunk the day after he ran a red light and killed a woman. "That's the hardest part about these DUI offenders — especially the repeat offenders, as we describe them — they're ticking time bombs," said Adams County District Attorney Don Quick....

"You look at any state in the union, and this is a major, major cause of death," said state Rep. Kent Lambert, R-Colorado Springs, who co-sponsored a 2007 bill to create a felony DUI statute in Colorado. "We should be providing safe highways for the citizens of the state, and we need to get serious about it."...

Unlike most states, Colorado has no felony law for the third, fourth or 10th drunken-driving offense. A habitual traffic offender who drives drunk with a revoked license can face up to 18 months in prison on a low-level felony charge. And there are 53,201 people who have three or more drunken-driving offenses in Colorado, according to Division of Motor Vehicle records provided to The Post. Fifty-one have 10 or more drunken-driving cases in Colorado.

Quick said he has noticed a growing courtroom reluctance to impose jail time even for multiple drunken-driving offenses. "Whether it's jail overcrowding or a shift in philosophy on sentencing, I can't tell you why," he said. He finds this trend troubling. With persistent drunken drivers, "we've tried the treatment model and it's not working," he said. When somebody dies, "it doesn't matter that the person used a car rather than a gun."

Some legislators say Colorado needs a felony law to stop persistent drunken drivers before they kill people. "We slap them just as hard on the wrist for their fifth as we did for the first," said state Rep. Steve King, R-Grand Junction. "Granted, they're going to pay more money, but that's not going to keep them from driving. They need to go to jail."

But previous efforts to pass such a law have been stopped by cost estimates and the reality of overcrowded prisons. And "the thing about jail is they will still get out and they will still drive, if that's what they do," said Rep. Beth McCann, D-Denver. "So we really have to look at some way to prevent them from driving."

As I have suggested in this prior post, I think technology in the form of ignition-interlock devices (which require drivers to blow into a tube that checks BAC) might be a viable way to try to prevent drunk drivers from being such a menace on the road. I have seen reports that ignition interlock laws and punishment are effective at reducing alcohol-related accidents, and thus I'd like to see much greater use of this technology (or others) to help deal with the loader driver or a car who can often be even more dangerous than a loaded gun.